Federal judge dismisses lawsuit over constitutional right to sell cigarettes

[JURIST] A judge for the US District Court for the Northern District of California [official website] on Friday dismissed [opinion, PDF] a lawsuit over the constitutional right to sell cigarettes. The lawsuit was brought by Safeway, Inc. [corporate website], a chain of grocery stores, challenging a San Francisco city ordinance banning the sale of cigarettes by pharmacies. The original ordinance had included an exception for "big-box stores" that contain pharmacies, but it was amended due to a lawsuit brought by Walgreens arguing that such an exception violated the Equal Protection Clause (EPC) [Cornell LII backgrounder]. The ordinance cites health risks associated with smoking cigarettes and states, "through the sale of tobacco products, pharmacies convey tacit approval of the purchase and use of tobacco products, which sends a mixed message to consumers who generally patronize pharmacies for health care services." Safeway argued that the ordinance did not apply to its stores because the pharmacies are separate and isolated from the counters selling cigarettes, and the pharmacy personnel are not asked to sell cigarettes. Safeway further argued that the city's revocation of licenses to sell cigarettes granted under the exception in the original ordinance violated due process. Judge Claudia Wilken, however, said that the ordinance was a valid use of the police power and did not violate the EPC:

The purpose of the amended ordinance, to promote the public health by preventing people from becoming addicted to tobacco and by helping those already addicted to stop smoking, is legitimate and even compelling. In prohibiting the sale of tobacco products in pharmacies, the amended ordinance accomplishes its purpose by ending any inference that tobacco products may not be harmful because they are sold by a major participant in the health care delivery system.

Furthermore, the court held that the ordinance was not preempted by state law regulating pharmacists. The court dismissed the lawsuit with prejudice and without leave to amend. San Francisco City Attorney David Herrera [official profile] said [press release], "those who operate pharmacies have chosen to participate in our healthcare delivery system, and that should not include the delivery of cigarettes. I am grateful that Judge Wilken rejected the argument that Safeway  whose slogan is 'Ingredients for Life'  has a constitutional right to sell addictive tobacco products." The California Medical Association [official website] filed an amicus curiae brief in favor of San Francisco.

Cigarettes and other tobacco products have been subject to strict marketing regulations on both the federal and state levels. Earlier this year, two tobacco companies filed a lawsuit [JURIST report] in the US District Court for the District of Columbia [official website] against the Food and Drug Administration (FDA) [official website] to enjoin a recent opinion by the agency's advisory committee due to conflicts of interest. Last year, the FDA announced a final rule [text] restricting tobacco sales and promotions [JURIST report] directed at youth. The Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents are a set of broad regulations "designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States." In 2009, US President Barack Obama [official website] signed into law [JURIST report] the Family Smoking and Tobacco Prevention Act [HR 1256 text], which grants the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The bill gives the FDA authority to regulate tobacco products but does not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses and tobacco grower cooperatives.

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